Gujarat High Court
State Of Gujarat vs Saurashtra Majur Mahajan Sangh on 4 May, 2022
Bench: Biren Vaishnav
C/SCA/14955/2021 JUDGMENT DATED: 04/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14955 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
SAURASHTRA MAJUR MAHAJAN SANGH
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Appearance:
MS.SURBHI BHATI, AGP for the Petitioner(s) No. 1,2
KRISHNAN M GHAVARIYA(8133) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 04/05/2022
ORAL JUDGMENT
1. Heard Ms.Surbhi Bhati learned AGP for the State and
Mr.Krishnan Ghevariya learned advocate for the
respondent no.1.
2. Challenge in this petition under Article 226 of the
Constitution of India, is to the award dated 14.02.2020.
By the award under challenge, the petitioner-State of
Gujarat has been directed to pay to the respondent-
C/SCA/14955/2021 JUDGMENT DATED: 04/05/2022
sweeper, salary for undertaking work for four hours a
day together with arrears from the date of
reinstatement. A further direction has been issued that
as and when a regular process of recruitment is
undertaken, looking to her tenure of service since the
year 1985, preference be given to her.
3. Facts in brief would indicate that the respondent-Union
raised an industrial dispute on behalf of Rahimaben
Adambhai Katia - part-timer. Reading the terms of
reference would indicate that the reference was for
extending the benefits that were available to full time
employees. That, she had completed over 30 years of
service and even thereafter she was still being paid
fixed wages though working in the establishment from
10 am to 6.30 pm. The fact of the Rahimaben working
for full time was denied by the petitioner before the
Industrial Tribunal.
4. The case of the petitioner as argued by Ms.Bhati
learned AGP for the State was that Rahimaben was not
appointed on a permanent set up but she worked as
C/SCA/14955/2021 JUDGMENT DATED: 04/05/2022
and when there was work available for a period of two
years for cleaning and serving water. That she was
paid through the contingency funds. That, there was no
regular set up and since her appointment was not in
accordance with the procedure of recruitment, she was
not entitled to regularization. Based on the principle of
no work no pay, Ms.Bhati would rely on the following
decisions:
(I) In case of Algemene Bank Nederland, N.V. v.
Central Government reported in 1978 II LLJ
117/1978 I LLN 101
(II) In case of State of UP v. PO Labour Court
reported in 2005 IV LLJ (Suppl) NOC 145
(III) In case of M/s Sikand & Co. v. State of HP &
Ors. reported in 2007 (115) FLR 465
5. She would submit that the award of the Industrial
Tribunal granting the benefits of permanency and
arrears was misconceived.
6. Mr.Krishnan Ghevariya learned counsel for the
respondent would support the award of the Industrial
Tribunal.
C/SCA/14955/2021 JUDGMENT DATED: 04/05/2022
7. Perusal of the reasoning assigned by the Industrial
Tribunal for granting the benefits of fixed pay of 4
hours of work and only granting a limited benefit of
letting the respondent-workman participate in the
recruitment process as and when taken, was under the
following circumstances:
(I) Rahimaben Adambhai Katia, the concerned
workman was examined at Exh.10. In her deposition,
she has stated that she was not given any appointment
order. Though the State would discard her version of
working full time based on the deposition of Doctor
Darshan Patel at Exh.12, the Industrial Tribunal on
examination of documentary evidence found that the
respondent was working for eight hours in the office
i.e. from 10 a.m. to 6.30 p.m. Vouchers for December
1989 to July 1991 were produced by the employer
which persuaded the Industrial Tribunal to hold that in
absence of any evidence contrary that the respondent
had worked only for two hours in a day, examining the
nature of duties that the respondent carried out, the
Industrial Tribunal came to the conclusion that she was
C/SCA/14955/2021 JUDGMENT DATED: 04/05/2022
working for over eight hours a day.
(II) Award of the Industrial Tribunal when perused,
would indicate that apart from holding that looking to
the wages paid from 1989 to 1991, would indicate that
4 hours of work being carried out, the Court found that
on her services from 1985 till the date of reinstatement
based on an award in her favour which was confirmed
by the High Court, the deposition of the respondent
indicate the various activities, nature of duties or work
that she carried out and it was plausible to believe that
the kind and nature of work she undertook, there was
reason to believe that the work would last for more
than two hours. She apart from cleaning the toilets
and washing the utensils and serving the water, she
was also engaged in undertaking other jobs such as
going to the post office, to the office of the Electricity
Company to pay light bills, which, in the opinion of the
Industrial Tribunal, would reasonably infer that she
was working for more than four hours.
(III) Based on the set up produced by the petitioner of
C/SCA/14955/2021 JUDGMENT DATED: 04/05/2022
Class-IV employees, the Industrial Tribunal found that
of the one post sanctioned for a peon, no appointment
was made in April 2006. Therefore, what was found
was that a post of regular employee on the set up did
exist, which was still vacant.
8. It was based on these circumstances that the Industrial
Tribunal found favour with the respondent inasmuch as
she was engaged for over a time of four hours of work
and that she was entitled to be regularized, particularly
when she had been working with the petitioner-
employer for over a period of 30 years.
9. Falling short of granting the benefits of regularization,
the Industrial Tribunal only granted that the case of
the respondent be considered for absorption as and
when a regular process of recruitment is undertaken.
10. In view of the above, no fault can be found with the
award of the Industrial Tribunal. The petition is
dismissed.
(BIREN VAISHNAV, J)
ANKIT SHAH
